Opinion
No. 11–P–1924.
2013-08-13
COMMONWEALTH v. Errol REECE.
By the Court (FECTEAU, HANLON & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Errol Reece, was convicted of one count of assault and battery on a child with bodily injury. He appeals, arguing that the Commonwealth impermissibly referred to his prearrest silence during its closing argument, photographs of the victim after surgery were admitted in error, and the portion of the self-defense instruction on the duty to retreat was unconstitutional. We affirm.
1. Background. The jury heard the following evidence. On September 11, 2010, the victim was thirteen years old; he was five foot, three inches tall and weighed approximately 110 pounds. After living with his grandmother for a period of time, he had recently come to live with his mother and two younger brothers. The defendant was in a relationship with the victim's mother and is the father of her youngest child, the victim's two year old half-brother. At the time of the incident, the defendant was in his forties, and approximately six feet, five inches tall. The night before the incident, the victim's mother left the victim to babysit his half-brother. The victim woke up in the middle of the night, thinking that he had heard the baby crying, and walked towards his mother's room where the baby's crib was located. Upon hearing the defendant and his mother arguing, he went into the room and told the defendant that “she didn't want him to touch her and that he needed to leave.” He then went out of the room and his mother closed the door behind him. The victim went back to his room and used his cellular telephone to call and send text messages to his father and his aunt, asking for someone to come pick him up. He then went back towards his mother's room to hear what was being said, and he heard the defendant talking about him. The victim went back to his room and began to pack his bags, still hoping that someone would answer his messages and take him away.
Specifically, the victim heard his mother say, “get off of [me],” with the defendant responding that “all his women like his dick.”
The victim heard the defendant say the victim thought he “rule [d] the house,” and “who does he think he is breaking in doors?”
The defendant followed the victim and an angry conversation between the two followed. The victim again told the defendant he “needed to leave” and also said that he wasn't scared of him. The defendant told the victim he was a punk and the victim said, “do something.” The defendant stood an inch away from him, saying, “I'm right here now.” The victim pushed the defendant away with two hands and the defendant “threw a punch” and hit the victim on his left temple. The victim immediately felt dizzy and fell to the floor. He woke up some time later with a headache and began throwing up repeatedly. Eventually, the victim's father returned his calls and then came to pick him up; at his mother's direction, the boy left by the back door. As the victim was leaving, he saw the defendant come out the front door and confront his father. The two men threw punches at each other “but nothing landed[,] cause [the victim's] mom ran out of the house and got in between both.”
The father testified that, as he was arriving to pick up his son, the defendant came out of the house yelling and asking him “[w]hat [he was] going to do about it. He's not taking no disrespect from no little boy.” The defendant did not mention that he was concerned that the victim might have hurt him or that he was afraid of the victim.
The father, along with a friend, drove the victim directly to the police station. While the victim and his father were in the police station, the father's friend, who remained outside in the car, observed the defendant sitting in his car across the street from the police station with an unobstructed view of its front entrance. The defendant did not go into the station and eventually drove off.
When they left the police station, the father asked the victim if he wanted to go to the hospital and he said that he did. They drove to Carney Hospital; after a few hours, the victim was transported by ambulance to Children's Hospital, where he had surgery. Records from Children's Hospital show that the victim “sustained an epidural hematoma, which is a clot of blood around the brain, which required urgent surgical intervention from a blow to the head.” He remained in the hospital for a week and went home with a bandaged head. He missed a month of school and was unable to play basketball for three months with his AAU team. On September 23, 2010, the police located the defendant; when they asked him to identify himself, he gave a false name.
At trial, the Commonwealth offered postsurgery photographs of the victim, which were admitted over the objection of the defense, for the purpose of refreshing the father's memory as to which side of the victim's head was injured. The Commonwealth also referred to the photographs, without objection, when asking each parent if the photographs accurately portrayed how the victim appeared after surgery. The defendant did not testify.
In his closing argument, the prosecutor commented on the fact that the defendant did not claim self-defense during his confrontation with the victim; nor did he go into the police station to explain the situation, though likely he knew the victim and his father were inside reporting the incident. The Commonwealth also referred to the fact that the defendant gave a false name to the police when stopped. There were no objections to the prosecutor's closing argument.
During his instructions to the jurors, the judge told them that they must not be “swayed by prejudices, by sympathy or by personal likes or dislikes towards either side.” He gave a consciousness of guilt instruction, and, at the defendant's request, the judge told the jurors that they were not to draw any adverse inference against the defendant because he did not testify. He also gave the standard instruction that closing arguments are not to be used as evidence. Finally, when instructing on self-defense, the judge stated that the Commonwealth must prove that the defendant did not act in self-defense and “did not do everything reasonable in the circumstances to avoid physical combat before resorting to force.”
2. Discussion. a. Prosecutor's argument. The defendant argues that certain comments in the prosecutor's closing argument created a substantial risk of a miscarriage of justice. Specifically, the defendant cites the prosecutor's summation of the following evidence: first, the defendant's comment to the victim's father that he was not going to permit the victim to “disrespect” him; second, his failure to go into the police station when he likely knew the victim and his father were inside reporting the incident; and third, when he gave a false name at the time he was arrested and did not volunteer his version of the events. According to the defendant, these statements, intended by the prosecutor to undermine his self-defense theory at trial, constituted improper comments on his prearrest silence.
As to the defendant's statement to the victim's father, “[t]he defendant's claim that the prosecutor's remarks impermissibly infringed on his right to remain silent fails for the simple reason that the defendant did not exercise his right to remain silent.” Commonwealth v. Martino, 412 Mass. 267, 283 (1992). See Commonwealth v. Robidoux, 450 Mass. 144, 160 (2007). Cf. Commonwealth v. Sosa, 79 Mass.App.Ct. 106, 110–111 (2011).
Comment on the fact that the defendant did not go into the police station to present his version of the facts presents a closer issue. “Although a defendant's prearrest silence may be used as an adoptive admission, the ‘impeachment of a defendant with the fact of his prearrest silence should be approached with caution.’ “ Commonwealth v. Gonzalez, 68 Mass.App.Ct. 620, 630–631 (2007), quoting from Commonwealth v. Nickerson, 386 Mass. 54, 62 (1982). “[W]henever [such impeachment] is undertaken, it should be prefaced by a proper demonstration that it was ‘natural’ to expect the defendant to speak in the circumstances.” Id. at 631, quoting from Commonwealth v. Nickerson, supra. See Commonwealth v. Nickerson, supra at 61 (“Although most lay people do not know the intricacies of their constitutional rights, it is a generally held notion that one does not have to say anything to the police and that what one does say may be used against [one]”); Commonwealth v. Thompson, 431 Mass. 103, 117, cert. denied, 531 U.S. 864 (2000); Commonwealth v. Beneche, 458 Mass. 61, 73 n. 13 (2010). In this case, it does not require much imagination to conjure understandable reasons why this defendant might have been reluctant to confront for the second time this angry father and his injured son, this time in a police station.
The prosecutor argued, “And he didn't go inside, ladies and gentlemen, and say, look I know the boy's been hurt, but I was defending myself. You have to understand. Nothing about that.... He didn't even go to the police to say anything about it.”
Comment on the defendant's failure to offer his version of the events at the time of his arrest is even more problematic. Evidence that the defendant gave a false name at arrest was properly admitted. See Commonwealth v. Cruz, 416 Mass. 27, 29 (1993) (“False statements to the police are standard examples of consciousness of guilt evidence”); Commonwealth v. Walker, 421 Mass. 90, 96 (1995). However, the prosecutor's further comment on what the defendant did not say was improper and should not have been made . On the other hand, the Commonwealth's case was very strong, and, as noted, the defendant made no objection to either argument at the time it was made. Under all of the circumstances, we are persuaded that neither of these latter two arguments created a substantial risk of a miscarriage of justice. See Commonwealth v. Beneche, 458 Mass. at 76.
Specifically, the prosecutor said, “He didn't say, I'm Errol Reece, and I know maybe why you're here. It was self-defense. You don't understand, the boy came at him, I had no option, I had to defend myself. Nothing. Edward Reed, ladies and gentlemen.”
b. Photographs. The defendant next argues that the photographs of the victim taken after surgery were not relevant to any contested issue at trial and unfairly prejudiced him. We disagree. “The fact that a photograph is cumulative of other evidence has not required the exclusion of the photograph.” Commonwealth v. Pena, 455 Mass. 1, 12 (2009), quoting from Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999). “[W]hether the inflammatory quality of a photograph outweighs its probative value and precludes its admission is determined in the sound discretion of the trial judge.” Commonwealth v. Lyons, 444 Mass. 289, 297 (2005), quoting from Commonwealth v. DeSouza, supra . The photographs here were not unduly inflammatory as they merely showed the bandaged victim postsurgery. See Commonwealth v. Urrea, 443 Mass. 530, 545 (2005).
While the defendant objected, he did not explain the objection or offer any reason why the photographs should have been excluded.
c. Self-defense instruction. Finally, the defendant argues that the judge's self-defense instruction violated his constitutional right to self-defense. Citing Commonwealth v. DeCaro, 359 Mass. 388, 390 (1971), he acknowledges the longstanding Massachusetts rule that the right of self-defense does not accrue until a defendant has availed himself of all proper means to avoid physical combat, that is, that a defendant has a duty to retreat. Nevertheless, he argues that the United States Supreme Court's holding in District of Columbia v. Heller, 554 U.S. 570, 628 (2009), that “the inherent right of self-defense has been central to the Second Amendment right” renders the Massachusetts law unconstitutional. In his view, “Massachusetts's longstanding common law duty to retreat, as expressed through jury instructions, unduly burdens this fundamental right to self-defense. The burden of retreating is substantially similar to regulation of handguns presented in Heller and McDonald [v. Chicago, 130 S.Ct. 3020 (2010) ].” The defendant cites no authority, either from Massachusetts or elsewhere in support of this argument.
We are therefore unwilling, at least on the facts of this case, to extend the Court's interpretation of the Second Amendment to include the elimination of the long standing Massachusetts rule that a defendant has a duty to use reasonable avenues of retreat before he or she may use physical force in self-defense. See Commonwealth v. Harrington, 379 Mass. 446, 450 (1980) (defendant was not entitled to a self-defense instruction because there was no evidence that he “availed himself of all proper means to avoid physical combat” by retreating or attempting to retreat); Commonwealth v. Pike, 428 Mass. 393, 398 (1998); Commonwealth v. Espada, 450 Mass. 687, 693 (2008); Commonwealth v. Benoit, 452 Mass. 212, 227 (2008).
Judgment affirmed.